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IN THE COURT OF APPEALS OF IOWANo. 17-0006Filed January 10, 2018STATE OF IOWA,Plaintiff-Appellee,vs.BRETT EDWARD JONES,Defendant-Appellant.Appeal from the Iowa District Court for Madison County, Richard B. Clogg,Judge.A defendant appeals his conviction for operating while intoxicated, assertingthe court should have granted his motion to suppress the breath test results.AFFIRMED.R.A. Bartolomei of Bartolomei & Lange, P.L.C., Des Moines, for appellant.Thomas J. Miller, Attorney General, and Thomas E. Bakke, AssistantAttorney General, for appellee.Considered by Tabor, P.J., Bower, J., and Scott, S.J.**Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
2SCOTT, Senior Judge.Following a bench trial, Brett Jones appeals his conviction for operatingwhile intoxicated (OWI), second offense, in violation of Iowa Code section 321J.2(2016). He asserts on appeal the district court should have granted his motion tosuppress the breath test results because implied consent, outlined in section321J.6(1), was improperly invoked. Because we conclude Jones communicatedhis refusal of the preliminary breath test (PBT) by his actions and silence, thedeputy sheriff properly invoked implied consent, and the district court correctlydenied Jones’s motion to suppress.I. Background Facts and Proceedings.While on patrol in Truro, Iowa, a Madison County deputy sheriff initiated atraffic stop of Jones’s pickup truck after observing him repeatedly squeal his tiresand rev his engine. The deputy observed the classic signs of intoxication aftermaking contact with Jones—“He had bloodshot, watery eyes, slurred speech, andsmelled of an alcoholic beverage.” The deputy also observed an open beer can inthe center console of Jones’s truck. Jones had a slightly unsteady gait uponleaving his truck, and the deputy observed he had chewing tobacco in his mouth.The deputy instructed him to remove the tobacco, and Jones complied. Thedeputy then initiated three field sobriety tests, and Jones failed all three tests.The deputy then advised Jones he had not passed any of the tests and hebelieved Jones was intoxicated. He advised Jones he would offer Jones a PBT: “Iwill offer you a PBT, which is a breath test I give you here. Is that something youwant to take? It is up to you. You do not have to take it; it is not admissible incourt.” Jones did not respond for approximately eighteen seconds, and then,
3according to the deputy’s testimony, Jones got his chewing tobacco out of hispocket. The following exchange took place as Jones put chew in his mouth:The deputy: “No chew.”Jones: “What do you mean no chew?”The deputy: “You cannot have anything in your mouth.”Jones: I’ve had chew in my mouth the whole f*****g time we’vebeen talking.”The deputy: “Alright, I’m taking that as a refusal then.”Jones: “On what?”The deputy: “On the chew, because, like I’ve already told you,you can’t.”Jones: “Can’t what.”The deputy: “Have chew in your mouth.”Jones: “Why?”The deputy: “Because it messes with the test. Alright, that’sa refusal on that, then.”After settling on who would take possession of Jones’s truck, the deputyhandcuffed Jones and transported him to the station, where the deputy invokedimplied consent and asked for a sample of Jones’s breath. The reason indicatedon the form for invoking implied consent was Jones’s refusal to submit to the PBT.The Datamaster test indicated Jones’s blood alcohol content was .200.Jones was charged with OWI, second offense.He filed a motion tosuppress the result of the Datamaster test, asserting the deputy improperlyinvoked implied consent because he never refused to take the PBT. After anevidentiary hearing, the district court denied the motion on the basis that impliedconsent was properly invoked after a lawful arrest. The court found the deputysimply mistakenly forgot to check that basis on the implied consent form. The courtsummarily denied Jones’s motion to reconsider, and Jones waived his right to ajury trial and proceeded to a trial on the minutes. After finding Jones guilty ascharged, the court sentenced him to a two-year term of incarceration with all but
4seven days suspended. Jones was ordered to successfully complete the OWISecond Program, which would count four days toward the jail sentence, and besupervised on probation for two years.In addition, the statutory fine andsurcharges were imposed, and Jones was order to complete a course for “drinkingdrivers.” Jones appeals.II. Scope and Standard of Review.In light of the fact Jones’s motion to suppress was based on statutoryinterpretation, rather than on constitutional principles, our review of the districtcourt’s ruling is for the correction of errors at law. See State v. Lukins, 846 N.W.2d902, 906 (Iowa 2014); State v. Madison, 785 N.W.2d 706, 707–08 (Iowa 2010).III. Implied Consent.Iowa Code section 321J.6(1) provides a law enforcement officer can invokeimplied consent and request a sample of a person’s breath, urine, or blood if,among other reasons:a. A peace officer has lawfully placed the person under arrestfor violation of section 321J.2.b. The person has been involved in a motor vehicle accidentor collision resulting in personal injury or death.c. The person has refused to take a preliminary breathscreening test provided by this chapter.d. The preliminary breath screening test was administeredand it indicated an alcohol concentration equal to or in excess of thelevel prohibited by section 321J.2.e. The preliminary breath screening test was administered toa person operating a commercial motor vehicle as defined in section321.1 and it indicated an alcohol concentration of 0.04 or more.f. The preliminary breath screening test was administered andit indicated an alcohol concentration less than the level prohibited bysection 321J.2, and the peace officer has reasonable grounds tobelieve that the person was under the influence of a controlledsubstance, a drug other than alcohol, or a combination of alcohol andanother drug.
5g. The preliminary breath screening test was administeredand it indicated an alcohol concentration of .02 or more but less than.08 and the person is under the age of twenty-one.At issue in this case is paragraph c: “The person has refused to take a preliminarybreath screening test provided by this chapter.”1 Jones maintains the deputyadmitted on cross-examination at the motion to suppress hearing that the deputynever asked Jones to submit to the PBT and Jones never refused. Upon ourreview of the record, including the deputy’s body camera video, we conclude thedeputy did ask Jones to take the PBT by stating: “I will offer you a PBT, which is abreath test I give you here. Is that something you want to take?” Likewise, weconclude Jones refused to take the PBT by his behavior.“We objectively consider the statement and conduct of the arrestee and thepeace officer, as well as the surrounding circumstances, in determining if anarrestee has refused to submit to a chemical test.” Short v. Iowa Dep’t of Transp.,447 N.W.2d 576, 578 (Iowa Ct. App. 1989).We have held that anything less than an unqualified, unequivocalconsent is a refusal. See Swenumson v. Iowa Dep’t of Public Safety,210 N.W.2d 660 (Iowa 1973) (attempt to stall test until attorney isconsulted held to be a refusal); see also McCrea v. Iowa Dep’t ofTransp., 336 N.W.2d 427 (Iowa 1983) (arrestee’s failure to providespecimen after giving verbal consent held to be a refusal); Taylor v.Iowa Dep’t of Transp., 260 N.W.2d 521 (Iowa 1977) (lack ofcooperation held a refusal); Morgan v. Iowa Dep’t of Public Safety,1While the district court denied the motion to suppress after finding the deputy lawfullyplaced Jones under arrest, see Iowa Code § 321J.6(1)(a), “we are obliged to affirm anappeal where any proper basis appears for a trial court’s ruling, even though it is not oneupon which the court based its holding” so long as the parties raised the issue in the districtcourt. See State v. Maxwell, 743 N.W.2d 185, 192 (Iowa 2008) (citation omitted). TheState urged the district court to deny the motion to suppress based on the deputy’s correctinterpretation of Jones’s behavior as a refusal of the PBT, and we conclude the appealcan be affirmed on that basis. We therefore do not address Jones’s alternative argumenton appeal that the deputy did not lawfully place him under arrest prior to invoking impliedconsent.
6227 N.W.2d 155 (Iowa 1975) (consent to blood test at hospital ofarrestee’s choice held a refusal).Ferguson v. Iowa Dep’t of Transp., 424 N.W.2d 464, 466 (Iowa 1988), abrogatedon other grounds by State v. Hicks, 791 N.W.2d 89, 95-96 (Iowa 2010); see alsoWelch v. Iowa Dep’t of Transp., 801 N.W.2d 590, 595 (Iowa 2011) (“Our previousdecisions establish that a broad definition of the term ‘refusal’ is more closelyaligned with the legislative intent underlying the implied consent statute.Inaddition to explicit, unqualified refusals, we have found that failures to cooperate,conditional refusals, conditional assents, consents followed by a failure to providethe requested specimen, and consents followed by combative behavior allconstitute refusals within the meaning of sections 321J.6(2) and 321J.9(1).”); Statev. Dulaney, 493 N.W.2d 787, 789 (Iowa 1992) (holding motorist’s lack of responseto request for chemical test and subsequent statement to “[g]et your searchwarrant” was a failure to cooperate amounting to implied refusal); Scarbrough v.Iowa Dep’t of Transp., No. 06-1764, 2007 WL 4553629, at *4 (Iowa Ct. App. Dec.28, 2007) (“In light of the fact that Scarbrough made several attempts to sabotagethe results of his chemical breath test, we, like the agency, find Scarbrough’sactions constituted a de facto refusal.”).While these cases address the issue of a person’s refusal to submit to thechemical test after the implied content procedure had been invoked, we find thecases instructive in determining whether Jones refused to submit to the PBT.While Jones did not articulate a verbal negative response to the deputy’s questionor shake his head no, Jones’s refusal was communicated through his prolongedsilence immediately after the deputy’s question and by Jones’s behavior defying
7the deputy’s clear instructions not to place chewing tobacco in his mouth“[b]ecause it messes with the test.” Because we conclude Jones refused the PBT,the deputy properly invoked the implied consent procedure based on that refusal,and the district court was correct in denying Jones’s motion to suppress thechemical test results. We affirm Jones’s conviction and sentence.AFFIRMED.
Jan 10, 2018 · BRETT EDWARD JONES, . Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant . Jones did not respond for approximately eighteen seconds, and then, 3 according to the deputy’s testimony, Jones got his chewing tobacco out of his pocket. The following exchange to
